December 17, 2020
By Jenna Bentley
Originally created as part of many states’ Racketeer Influenced and Corrupt Organizations Act (RICO) statutes, the practice of civil asset forfeiture allows law enforcement to seize private property without a warrant, charges, or conviction of a crime. It was sold as a tool to crack down on drug trafficking and organized crime. While the use of civil asset forfeiture against true organized crime has diminished over the past few decades, its main use now is against regular citizens.
Three years ago, the Institute for Justice undertook the lofty goal of tracking and analyzing data nationwide on law enforcement use of civil asset forfeiture. And this week, IJ released the 3rd edition of this report, Policing for Profit, offering an up-to-date look into the practice.
While civil asset forfeiture reform is a growing bipartisan priority, many organizations lacked the ability to truly understand the scale of this practice. Fortunately, Policing for Profit came into existence. Updated annually, the report gives a state-by-state breakdown and ratings based on three elements: the standard of proof, the innocent one’s burden to reclaim property, and whether law enforcement can keep the property or profits from selling the property it seizes.
According to the newest edition, the median currency forfeited nationally is $1,276 per person. Hardly the elaborate organized crime syndicates the RICO statutes were originally created to stop. Rather, we see the majority of these seizures are against ordinary people. Because of the small dollar amount, most civil asset forfeitures go uncontested because it would cost people more to fight it than the property is worth.
State Rankings for Civil Asset Forfeiture Abuse
Massachusetts received the worst rating this year—an F—from the new report. Part of the reason for its low score is the lack of transparency or accountability by law enforcement to show what was done with sized property or where the funds were spent. The Bay State allows police to seize property by only showing probable cause, the lowest standard of proof. The burden is also on innocent owners to prove their innocence to recover unjustly seized property. Finally, law enforcement can keep all the property seized. While Massachusetts made some progress in 2018 by passing a bill requiring more reporting from the agencies on their seizures, it is still difficult to get a clear picture of what agencies within the state are doing with seized property.
The Goldwater Institute’s home state of Arizona did not fare much better, garnering a D-. While reporting measures have improved in recent years due to the efforts of Goldwater, Institute for Justice, and coalition partners to pass reforms at the legislature, much still needs to be fixed. Some reforms include shifting the burden of proof from the innocent owner to law enforcement to prove they had knowledge the seized property was being used in a crime, requiring a criminal conviction, and removing the financial incentive of allowing agencies to keep the profits of what they seize.
The only state to receive an A rating was New Mexico, which has abolished the practice of civil asset forfeiture entirely and prevents agencies from keeping any funds received through criminal forfeiture proceedings. Unsurprisingly, after New Mexico banned civil asset forfeiture in 2015, crime did not go up and arrest rates did not decrease.
The Federal Loophole: Equitable Sharing
Although many states have been implementing statutes that reform the practice of civil asset forfeiture, the danger remains. That is because of a practice known as equitable sharing. State agencies are able to partner with the federal government to take property under federal civil asset forfeitures laws, which are more favorable to law enforcement, essentially circumventing protections passed by the state. Supporters of this practice claim that it provides local agencies with more resources to stop illegal activity and solve crimes, but that data does not support that claim:
Results from the 2019 study by economist Brian Kelly indicate equitable sharing payments to state and local agencies did not translate into more crimes solved or lower levels of drug use—though they did correspond to fiscal stress, suggesting equitable sharing use increases when the economy turns sour and law enforcement budgets are likely to suffer cuts. (See “Evidence Suggests Forfeiture Doesn’t Work.”)
Where Do We Go from Here?
The prohibition of civil asset forfeiture should be the goal of each state. As we have seen in New Mexico, this does not prevent law enforcement from stopping illegal activity, but it does help protect people’s private property and due process rights. Other commonsense reforms including requiring a criminal conviction before law enforcement can seize property under civil asset forfeiture requirements, removing the financial incentive by not allowing agencies to keep the profits from what they seize, and putting the burden of proof on the agency to prove a third-party owner knew the property seized was being used for illegal activity. However, until stronger due process rights and protections are implemented, law enforcement will continue to police for profit.
Read the full version of Policing for Profit, 3rd Edition, here.
Find more information about Goldwater Institute’s work on civil asset forfeiture reform here.
Jenna Bentley is the Director of Government Affairs at the Goldwater Institute.